opinion on the subject? It seemed to me, I own, to be a little fallacious to direct our attention to the shifting and tergiversation of the legislature, with regard to this or that particular marriage, for the establishing or the annulling which great political interests were at work, and to say that on that account God's law had been pronounced in different ways in the course of those different statutes. If the statutes themselves are looked into, they are not open to that remark at all. It will be found that whenever they lay down the law generally, they lay it down with great uniformity, and with direct reference to the Levitical degrees. Where they condescend to particulars it will be found that the 18th chapter of Leviticus was before the eye of the framer of the statute. The earliest of these statutes is the 25 Hen. 8. c. 22, and the 3rd section takes in succession that chapter of Leviticus, verse after verse. It says, "Since many inconveniences have fallen as well within this realm, as in others, by reason of marrying within the degrees of marriage prohibited by God's law, that is to say, a son to marry his mother or step-mother,- —a brother his sister,-a father his son's daughter, or his daughter's daughter, or a son to marry the daughter of his father, procreate and born by his stepmother, or a son to marry his aunt, being his father's or mother's sister, or to marry his uncle's wife, or a father to marry his son's wife, or a brother to marry his brother's wife, or any man to marry his wife's daughter, or his wife's son's daughter, or his wife's daughter's daughter, or his wife's sister." Every one of these steps corresponds with the verse in Leviticus, and the wife's sister is the one that corrresponds with the 18th verse, the verse in question; "which marriages," it goes on to say, "albeit they be plainly prohibited and detested by the laws of God, yet nevertheless sometimes may have proceeded," &c. Then, in the 4th section, it declares all these to be unlawful marriages for the future. That is a clear and specific declaration of the legislature upon the subject. Then the 28 Hen. 8. c. 7, to be found in the appendix, has exactly the same repetition, step after step, of every one of those degrees ending with the wife's sister; and it speaks of them again as being plainly prohibited and detested by

the laws of God, and declares them for the future to be unlawful marriages. Then we come to the 28 Hen. 8. c. 16, which is material in this respect, that although it does not go through the Levitical degrees, step by step, it refers to that former act of parliament, and says, that "All marriages had and solemnized within this realm, or in any other of the king's dominions, before the 3rd day of November, in the twenty-sixth year of the king's most gracious reign, whereof there is no divorce or separation had by the ecclesiastical laws of this realm, and which marriages be not prohibited by God's laws limited and declared in the act made in this present parliament for the establishment of the king's succession." Upon these words the argument was founded, that by the mention of this 28 Hen. 8. c. 7. in this act of parliament, it must be taken to be revived till the repeal of this 16th chapter by a later act. Now all those acts of parliament having been passed, in the 32nd of Hen. 8, we have an act of parliament which makes use of the words "God's law," without explanation, and introduces the term "Levitical degrees." Can it be doubted that by the first expression here used was meant the same law spoken of in the three former acts, and that by the latter were meant those very Levitical degrees enumerated step by step in two of these former acts of parliament? But it is argued, that for a short period of time the authorities and the great text-writers construed it, as the counsel for the Crown contends that it ought to be construed, by reference simply to what his interpretation of God's law is, and so as to make this marriage valid. The cases cited were very few-one or two only and I seek no further to make a remark upon them than to say that it does so happen that in each of those cases a consultation was awarded, let it be supposed, upon some technical ground, and that it left the first decision of the case unreversed. But the great name of Lord Coke is pressed into the service. I think my Lord has given the most satisfactory answer to that observation. There is a report by him of Parson's case in 1 Inst. It is said that that was withdrawn, by the influence of the Court, in subsequent editions, and that it did not re-appear till a later one, and that after his lifetime. we have that fact, and a most important

But

one, which my Lord has referred to, that in the Second Institute of my Lord Coke (a work written at a latter period) there is a formal exposition upon this very statute of Hen. 8. (p. 683). He says, "that for the better understanding of it, the Levitical degrees are necessary to be set down with certainty;" and then he says, "It is to be understood that by the 18th chapter of Leviticus, not only degrees of kindred and consanguinity, but degrees of affinity and alliance, do let matrimony, which may best be illustrated and expressed in this manner." Then, in the margin, he says, "See these degrees truly set down in the statute of the 25 Hen. 8. c. 22, and 28 Hen. 8. c. 7." I do not know whether I am authorized in saying that these marginal observations are Lord Coke's, but they are either by his authority or at least of some weight; and he there refers to those two statutes as truly setting down these degrees; and there I find "a man may not marry his brother's wife, or his wife's sister," set down in express terms; so that it is too much to say that Lord Coke's authority is to be taken on the part of the Crown in this case in the face of that distinct declaration by him in his 2nd Institute. Then the authorities pass on to the cases in Vaughan's Reports. The case of Hill v. Good has had a great many observations made upon it. My Lord has conceded that it is difficult to assent to some of the arguments in that case; and he has given reasons why it may be that, in the course of a long judgment, parts of the reasoning may be found to be incorrect, and yet the judgment itself not the less to be sustained.

With deference, I am not quite sure that if that long judgment came to be thoroughly examined from beginning to end, it might be found open in those parts to the observations that have been made upon it. However that may be, it is admitted that for about 200 years there has been a uniform course of decision in support of the judgment of Hill v. Good; indeed, it is the contention that it is entirely upon the authority of that case, that all the courts, temporal and ecclesiastical, (the ecclesiastical courts having, by our constitution, the original judgment in cases of this sort,) have been guided. If we then consider that we are only here discussing whether a man, who has been acquitted upon an exposition of

the statute of the 5 & 6 Will. 4. c. 54, which is in accordance with the decision of all courts, temporal and ecclesiastical, for 200 years, is or is not to have the benefit of his acquittal, is it not a little too much to ask this Court, which is only an intermediate court of error, (the ultimate decision of this case being, as it is stated, to be made in the court above,) to reverse at once this whole current of decisions, and to take away from the prisoner the verdict which he has already obtained? I do not mean to express any doubt whatever, that in Hill v. Good, the right interpretation was put upon the statute; indeed, I fully agree in the view there taken; but if my opinion were less strong than it is, I should still consider it my duty, sitting where I now do, to say that I think the judgment of this Court ought to be for the defendant in error.

WIGHTMAN, J.-When this case was before me in the court below, I did not mean by the judgment which I then gave to pledge myself to any definite opinion, as I knew that it was intended that the facts found by the jury should be made the subject of a special verdict, with a view to have the question considered by a court of error. I gave the judgment which at the time I thought right, and which, after careful attention to the arguments on both sides now urged before the Court, I do not find sufficient reason to alter. The argument upon this most important question was properly commenced, on the part of the plaintiff in error, by a reference to the terms of the 5 & 6 Will. 4. c. 54, upon the effect of which this case depends, and by inquiring what that statute meant by the words "prohibited degrees." If this case merely raised the abstract question whether a deceased wife's sister were within the degrees prohibited by the Levitical law, or, by inference, within the statute of the 32 Hen. 8. c. 38, I might find more difficulty in coming to a satisfactory conclusion, especially after the argument and the critical examination which the terms of the Levitical law and of the statute have undergone, than when the question is, what are the prohibited degrees referred to in the 5 & 6 Will. 4. c. 54? By the 1st section of that statute it is enacted, "that all marriages which shall have been celebrated before the passing of this act,

between persons being within the prohibited degrees of affinity, shall not hereafter be annulled for that cause by any sentence of the ecclesiastical court, unless pronounced in a suit which shall be depending at the time of the passing of this act ;" and there is a proviso, that "nothing hereinbefore enacted shall affect marriages between persons being within the prohibited degrees of consanguinity,"-drawing a distinction between the case of marriages between persons related by affinity and those related by consanguinity. And by the second section it is enacted, "that all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity, shall be absolutely null and void to all intents and purposes whatsoever." The statute itself does not define the prohibited degrees, and the question therefore is, what do those words mean as used in it? On the part of the prosecution it is said, that "the prohibited degrees" are those which are prohibited by some statute, and that the only statute unrepealed which shews what "the prohibited degrees" are, is the 32 Hen. 8. c. 38, by which it is enacted, "that no reservation or prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees ;" and then it is contended for the prosecution, that marrying a deceased wife's sister is neither prohibited by the law of God nor is it within the terms of the Levitical degrees. In considering, however, the meaning and intention of the legislature, in 5 & 6 Will. 4. c. 54, it is necessary to look somewhat closely to the professed object, as well as the language of that statute. The title is An act to render certain marriages valid, and to alter the law with respect to certain voidable marriages.' The recital is-" Whereas marriages between persons within the prohibited degrees are voidable only by sentence of the ecclesiastical court, pronounced during the lifetime of both the parties thereto, and it is unreasonable that the state and condition of the children of marriages between persons within the prohibited degrees of affinity should remain unsettled during so long a period, and it is fitting that all marriages which may hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity should be ipso facto void, and not

merely voidable." The prohibited degrees are mentioned both in the preamble and in the enacting part of the statute, without definition apparently, as already known; but the preamble states that marriages between persons within the prohibited degrees were voidable only by sentence of the ecclesiastical court. The statute then would appear as being intended to apply to those marriages which were voidable only in the ecclesiastical court, by reason of their being within the prohibited degrees, and which for the future, instead of being voidable only upon such suit in those courts, should be absolutely void. Upon reference to the law as administered in those courts, appearing upon a long series of decisions,

it appears that the marriage of a man with the sister of his deceased wife was voidable during the lifetime of both parties, because such marriages were, in those courts, held to be within the prohibited degrees. I do not think it necessary to inquire whether, in the ecclesiastical court, such a marriage was held prohibited by the Levitical law, the statute law, or the common law, or by all of those laws. It is clear, from the unvarying current of authority, that such a marriage was voidable in the ecclesiastical court, as being within the prohibited degrees, but voidable only during the lives of the parties; and if not avoided during their lives, it could not be questioned afterwards. This, no doubt, produced much uncertainty. If the case now before the Court had arisen before the passing of the 5 & 6 Will. 4. c. 54. and the person had married his wife's sister, and afterwards had married another woman in the lifetime of his first wife's sister, the marriage not having been avoided in the ecclesiastical court, he would, in that case, have been found guilty of the offence in question, the former marriage being good, because not avoided in the ecclesiastical court. But if the same marriage had taken place before the passing of this statute, and the marriage with the deceased wife's sister had been annulled in the ecclesiastical court by sentence, because within the prohibited degrees, he would then have been acquitted because he would not have been guilty of the crime of bigamy. Now, it seems to me that the object of the 5 & 6 Will. 4. c. 54. was at once to make those marriages void which might have been avoided in the eccle

siastical court by a suit, thereby avoiding the hardship of the validity of a marriage remaining unsettled pending a suit, or whilst it was uncertain whether a suit would be instituted or not. It is, as it seems to me, a statutory avoidance at once of that which might be avoided in the ecclesiastical courts; and if the marriage of a man with his deceased wife's sister would have been avoided by a suit in the ecclesiastical court, as within the prohibited degrees, I think it is avoided now by the 5 & 6 Will. 4. c. 54. Upon this ground I think the acquittal right; and that the judgment of the Court below should be affirmed. ERLE, J. concurred.

Appeal, Notice and Grounds of-Mandamus.

Where an appeal against an order of removal has been entered and respited to the following Sessions, that Court has power further to respite the hearing of the appeal, although no notice or grounds of appeal have, prior to such sessions, been served upon the respondents.

Therefore, where, under the above circumstances, the Sessions had refused to further respite the appeal, although it appeared that in the exercise of their discretion, they would have done so if they had considered that they had the power, this Court granted a mandamus, commanding the Justices to hear the appeal.

A rule had been obtained in this case, calling upon the Justices of Lancashire to shew cause why a mandamus should not issue commanding them to enter continuances, and hear an appeal against an order

(26) The Court stated that the present decision applied only to The Queen v. Chadwick, and that they would defer giving any judgment in The Queen v. St. Giles in the Fields, (argued Trin. Vac. 1847), which involved the same question, until an ultimate decision had been given in a court of error on the present special verdict.

of two Justices for the removal of Elizabeth Leonard, the wife of Matthew Leonard, and her three children, from the parish of Ashtonunder-Lyne, in the county of Lancaster, to the township of Batley, in the county of Chester. The affidavits on which the motion was made stated the following facts:On the 2nd of September 1846, two Magistrates for the county of Lancaster made an order for the removal of these paupers from the parish of Ashton-under-Lyne to the township of Batley, in the county of Chester, the place of the mother's maiden settlement. On the 25th of September the paupers were removed. The pauper Elizabeth Leonard, in her examination, which was sent to the overseers of Batley, with the order of removal, stated that her husband had deserted her, and she did not know where his settlement was. The overseers of Batley having reason to believe that the husband of Elizabeth Leonard was settled in Liverpool, entered and respited an appeal against the said order at the sessions held on the 26th of October. From the time of the removal of the paupers, exertions were made by the overseers of Batley for the discovery of Matthew Leonard, but it was not until the 1st of December that a warrant for his apprehension was obtained under the Vagrant Act, and on the 24th he was apprehended. No notice or grounds of appeal were given for the Epiphany Sessions, held on the 11th of January last; but on the first day of those sessions an application was made by the appellants to adjourn the appeal to the Easter Sessions. In support of the application an affidavit was made by the attorney for the appellants, stating that he had inquired into the settlement of Matthew Leonard, and that he believed he had gained a settlement in Liverpool; but that the necessary facts and evidence in support of such settlement could not be sufficiently ascertained in time to give due notice and grounds of appeal for trial at the present sessions, by reason of the absence of the said Matthew Leonard. An affidavit was also made, by the relieving officer of the union, to which the appellant parish belongs; and a policeman stating that every exertion had been made for the apprehension of Matthew Leonard, the Sessions directed the application to be renewed the

following day; and that, in the mean time, notice should be given to the respondents, with a copy of the affidavits, who then appeared by counsel, and opposed the application for adjournment on the ground that the appellants, not having given any notice of appeal, the Sessions had no power to adjourn it. The Sessions granted the application on the payment of the costs of the day by the appellants to the respondents. The following entry was made in the books of the Sessions :-" The order made, &c. is by the Court respited and adjourned until the next general Quarter Sessions of the Peace, here to be holden by adjournment, on payment of the costs of the day by the said appellants to the said respondents." Costs to the amount of 21. 14s. 6d. were paid by the appellants on the 20th of February. At the Sessions, held on the 14th of April, the appellants proved service of notice and grounds of appeal. On the 20th of March, the respondents contended, that as no notice of appeal had been given prior to the Epiphany Sessions, there was no power to adjourn the appeal; and the Sessions being of that opinion, refused to hear the appeal, and confirmed the order of removal.

Affidavits were also made by the attorney, and one of the overseers of the respondent parish stating that the practice at the Lancashire Sessions, in appeals against orders of removal, is to require fourteen days' notice to be given; that at the Epiphany Sessions, after argument on both sides as to the sufficiency of the affidavits on which the motion for further respiting was made, the Court, with the assent of the counsel for the appellants, directed that the further respiting of the appeal, and the acceptance of the costs of the day by the respondents, should not preclude or prejudice the respondents, when the appeal should be heard at the subsequent Sessions, from taking advantage of the objection made; that no notice of appeal had been given prior to the Epiphany Sessions; and that at the trial of the appeal the respondents should be at full liberty to avail themselves of such objection.

Townsend now shewed cause against the rule. It appears from the affidavits that the practice at the Lancashire Sessions is to require fourteen days' notice of appeal

to be given. The course for the appellants to have adopted was to have given notice of appeal for the Epiphany Sessions; and then, if the facts admitted it, to have applied to the Quarter Sessions, to further respite the hearing of the appeal. Instead of that no notice of appeal was given for the Epiphany Sessions. All that the Court did at those sessions was to postpone the argument upon this point until the Easter Sessions; and at these sessions, after hearing counsel, and in the exercise of their discretion, the Court determined that no sufficient notice of appeal had been given. He cited The Queen v. the Justices of Somersetshire (1), The Queen v. the Justices of Montgomeryshire (2).

Pashley, contrà.-The argument as to the practice of the Sessions does not apply. The ground upon which the Quarter Sessions refused to hear the appeal at the Easter Sessions was, that they had no power to adjourn the hearing of the appeal. That is the reasonable conclusion to be drawn from all these affidavits. Now it is clear that the Quarter Sessions had the power to respite the hearing of the appealThe King v. the Inhabitants of Kimbolton (3), The King v. the Justices of Gloucestershire (4), The Queen v. the Justices of London (5), The King v. Thackwell (6).

Cur. adv. vult.

Nov. 13.-PATTESON, J. [after stating the facts of the case]-I must take it upon these facts, that the Court of Quarter Sessions were willing, in their discretion, to have adjourned, and, subsequently, to have heard this appeal, but that they doubted as to their power so to do. That being so, and it being clear that they had this power, if in their discretion they thought fit to exercise it, I think that this rule for a mandamus should be made absolute.

Rule absolute.

(1) 16 Law J. Rep. (N.s.) M.C. 86. (2) 14 Ibid. 142.

(3) 6 Ad. & El. 603; s. c. 6 Law J. Rep. (N.s.) M.C. 90.

(4) 1 B. & Ad. 1; s. c. 8 Law J. Rep. M.C. 108.

(5) 15 Law J. Rep. (N.s.) M.C. 127.

(6) 4 B. & C. 62; s. c. 3 Law J. Rep. K.B. 139.